By: Audrey Henderson “[P]arents owe a duty of support to their minor children.” Kelleyv. Kelley, 248 Va. 295, 298 (1994). The payment of child support cannot be contracted around by the parents, and furthermore, a court cannot be barred from exercising its power to calculate child support from such an agreement. Id.Virginia Code § 20-108.2(B) provides a guideline of monthly basic child support obligations. The basic child support obligation is calculated based on the combined income of the parents and how many children the couple has (both natural born and adopted). Id. A court may allow an exemption that would make the child support obligation lower than the statutory minimum provided by the guideline. Id. Exemptions may include: (1) if the obligor is “unable to pay child support because they lack sufficient assets from which to pay the support and who, in addition, are institutionalized in a psychiatric facility”; (2) if the obligor is “imprisoned for life without chance of parole”; (3) if the obligor is medically disabled; or (4) if the obligor is “involuntarily unable to produce an income.” Furthermore, if the gross income of the obligor is equal to or less than 150% of the federal poverty line, the court may set an amount that is lower than the statutory minimum, provided that the amount doesn’t impair the other parent’s ability to maintain sufficient housing and provide basic needs for the child. Id. When the court computes the parent’s income, it includes income from: “salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes, or awards.” Va. Code Ann. § 20-108.2(C). However, there are some incomes that are not included when computing child support payments. These include: “benefits from public assistance and social services programs, federal supplemental security income benefits, child support received, or income received by the payor from secondary employment income” that is for the purpose of paying a court-ordered child support debt from another relationship. Id. Examples of secondary employment incomes are “incomes from an additional job, from self-employment, or from overtime employment.” Id. In addition, if one of the parents is already paying child support from a previous relationship and that child is not a party to the current proceeding, then that amount will be deducted from the gross income of that parent. Id. As per the establishment of a child support obligation, both parents are also required to pay “any reasonable and necessary unreimbursed medical or dental expenses. Va. Code Ann. § 20-108.2(D). This is calculated pursuant to the parents’ proportion of gross incomes. Id. These types of expenses may include “eyeglasses, prescription medication, prosthetics, orthodontics, and mental health or developmental disabilities services, such as services provided by a social worker, psychologist, psychiatrist, counselor, or therapist.” Id. A court will also take into consideration the costs for health care coverage, vision care coverage, and dental care coverage and add those expenses to the basic child support obligation. Va. Code Ann. § 20-108.2(E). Furthermore, if the custodial parent puts the child in some sort of licensed child-care system, those child-care costs will be added to the support obligation. Va. Code Ann. § 20-108.2(F). However, the court must “consider the willingness and availability of the noncustodial parent to provide child care personally in determining whether child-care costs are necessary or excessive.” Id. The amount of child support will also depend on your type of custody. The Virginia Code notes three types of custody: sole custody support, split custody support, and shared custody support. Sole custody is where one parent has full physical and legal custody of a child or children. Split custody is where both parents have physical custody of the child or children. Shared custody support is where a parent has “custody or visitation of a child or children for more than 90 days of the year.” To rebut the presumption of the amount of child support set out by the statutory guidelines, the court evaluates all the relevant evidence. Va. Code Ann. § 20-108.1(B). This leads to a very fact specific inquiry and every case will be different. Id. The court will look at fifteen factors, but each factor may not be applicable in every case.Virginia Code § 20-108.1(B) lists fifteen factors that Virginia courts evaluate to determine a rebuttable presumption of child support.

Actual monetary support for other family members or former family members;

Arrangements regarding custody of the children, including cost of visitation travel;

Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an education or vocational program likely to maintain or increase the party’s earning potential;

Any child care costs incurred on behalf of the child or children due to the attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party’s earning potential;

Debts of either party arising during the marriage for the benefit of the child;

Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;

Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;

Any special needs of a child resulting from any physical, emotional, or medical condition;

Independent financial resources of the child or children;

Standard of living for the children or children established during the marriage;

Earning capacity, obligations, financial resources, and special needs of each parent;

Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;

Tax consequences to the parties including claims for exemption, child tax credit, and child care credit for dependent children;

A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and

Such other factors as are necessary to consider the equities for the parents and children.

Understanding how a court will evaluate a petition for modification to a custody order can make a significant difference in the outcome of that court’s ruling. In Virginia, courts initially decide custody based on what is in the best interest of the child. To determine this, a judge will consider the following ten factors on a case-by-case basis from Va. Code Ann. § 20-124.3:

The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs.

The age and physical and mental condition of each parent. See Huck v. Huck, No. 1604-14-1, 2015 Va. App. LEXIS 184, at *6 (Va. Ct. App. June 2, 2015) (unpublished) (comparing the evidence related to the mental health of both parents, including the father’s anger and bullying and the mother’s anxiety and depression, the court refused to favor one parent over the other in consideration of this factor).

The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child.

The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members. See Forbes v. Forbes, No. 1081-12-1, 2013 Va. App. LEXIS 176, at *6 (Va. Ct. App. June 11, 2013) (unpublished)(denying the father’s motion to modify custody because the mother had a family support system living nearby).

The role that each parent has played and will play in the future, in the upbringing and care of the child.

The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child.

The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child.

The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference. See Sims-Bernard v.Bernard, No. 2090-12-2, 2013 Va. App. LEXIS 282, at *10 (Va. Ct. App. Oct. 8, 2013) (unpublished) (refusing the mother’s request for custody modification because, though her daughters stated a preference to living with their mother, this was not in their best interest due to the mother’s “mental abnormalities” in attitude towards their father).

Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; See Craven v. Williamson, No. 1023-11-4, 2012 Va. App. LEXIS 2, at *3 (Va. Ct. App. Jan. 10, 2012) (unpublished) (determining that evidence presented at trial indicated a history of abuse when the father frequently lost his temper and yelled at his children, in addition to him “stomping” on one child in anger).

Such other factors as the court deems necessary and proper to the determination.

Once a custody order is entered, the parent seeking modification ordinarily must establish both that the circumstances have materially changed since the last custody order and that the best interests of the child require a modification of custody.[1] To determine this, the court looks at the evidence presented and compares it to the ten best interest factors discussed above.[2] Most importantly, while making this decision courts are not required to weigh each of the ten factors equally or to elaborate on the amount of weight or consideration it gives each factor.[3] However, the court’s findings must be supported by evidence on the record or this will be considered an abuse of the court’s discretion.[4]

An example of how courts may evaluate the ten best interest factors independently and in conjunction with one another can be found in Bostick v. Bostick-Bennett.[5] In this case, the court compared the father’s degree of parental stability (factor three) with the mother’s ability to actively support the child’s relationship with the other parent (factor six), and initially granted sole custody to the father because it found that he could offer the child a more stable living environment.[6] The mother, though not unfit, could not provide the same level of support to the child as the father; however, the court allowed for visitation to foster and encourage the relationship between mother and child.[7] A short time later, when the father petitioned the court to relocate his child to North Carolina, his request was denied because he failed to prove a material change in circumstances that would warrant the child’s removal from Virginia.[8] Looking at the evidence presented, the court concluded that maintaining a relationship between the child and her mother would be in the best interest of the child, and that this relationship would be jeopardized if the father was granted his request to move to another state.[9]

Material Change in Circumstances

While the ten statutory factors are important to the modification of a custody order, a petitioner must first show the occurrence of a material change in circumstances. Next the petitioner should focus on these factors to demonstrate that a modification of custody is in the best interest of the child.

Virginia Code § 20-108 sets out one way for courts to determine if a material change has occurred by stating that the “intentional withholding of visitation of a child from the other parent without just cause may constitute a material change in circumstances justifying a change of custody in the discretion of the court.” A change in circumstances is not limited to negative events that may occur in the home of the custodial parent, though.[10] A material change may also broadly include changes that the child experiences, such as their level of maturity or any special educational needs, or may include positive changes to the circumstances of the noncustodial parent, such as remarriage or the increased ability to provide a stable home environment.[11] Ultimately, however, no change in custody will be allowed if the change in circumstances is not in the best interest of the child.[12]In Haring v. Hackmer,[13] the mother alleged a material change in circumstances occurred that would justify modification to the custody order that originally granted the father sole custody of their child. Namely, the mother argued that the father’s circumstances had declined when he remarried, moved his daughter to a new school due to relocation within the state, his financial situation had deteriorated, he had an unstable employment history, the daughter's mental and physical health had deteriorated since living with him, he allowed his daughter's medical insurance to lapse, and had not ensured that their daughter received proper medical and dental care.[14] Conversely, the mother alleged that her circumstances had improved because she relocated within the state and had established a successful insurance business.[15] Considering the evidence presented at trial, the court found no material change in circumstances, and the mother’s motion for modification was denied.[16]

Courts have also found that the following conditions do not indicate a material change in circumstances:

A change in work schedule allowing a parent to work from home and care for the child, an increase in the length of a subsequent marriage, or the custodial parent’s home being located in a neighborhood with few children. Humphries v. Davis, No. 0775-98-2, 1998 Va. App. LEXIS 635, at *4-5 (Va. Ct. App. Dec. 8, 1998) (unpublished).

In contrast, courts have found that the following conditions do indicate a material change in circumstances:

Making and then suddenly canceling plans to relocate to another country at the detriment of causing an unstable living environment for the child. Laing v.Walker, No. 1693-94-3, 1995 Va. App. LEXIS 592, at *5 (Va. Ct. App. July 18, 1995) (unpublished).

Showing by the noncustodial parent can show that the remarriage of the noncustodial parent has provided for a more stable living environment, that the child has become increasingly withdrawn since living with custodial parent, and that the child preferred to live with the noncustodial parent. Turner v Turner, 3 Va. App. 31, 34, 348 S.E.2d 21, 23 (1986).

Failure by the custodial parent to sufficiently support the children when their grades declined, when compared to the noncustodial parent who frequently met with the children’s teachers. Schoonover v. Schoonover, No. 0554-99-3, 1999 Va. App. LEXIS 518, at *5-6 (Va. Ct. App. Sept. 7, 1999) (unpublished).

Without a material change in circumstances and evidence that a change in custody is in the best interest of the child, a court will not grant the petition to modify custody.

There are two ways a court may change or modify a spousal support award: (1) where both parties agree to modify the amount, or (2) where a material change in circumstances or change in event happens that would involve a change in the spousal support amount.

Agreement to Modify by the Parties

The most efficient way to change a spousal support order is by agreement of the parties because a court cannot unilaterally change an agreed upon spousal support award according to the terms or stipulation or contract signed by both of the parties. See Blackburn v. Michael, 30 Va. App. 95, 100 (Va. Ct. App. 1999).

Material Change in Circumstances or Change in Event

However, if the parties cannot agree to a modification themselves, then upon the petition of either party, a “court may increase, decrease, or terminate the amount or duration” of any spousal support using the factors mentioned in my blog post How Do I Calculate the Amount of Spousal Support I owe or that is Owed to Me? Va. Code Ann. § 20-109(B). See also Thomas v. Thomas, 217 Va. 502, 505 (1976) (“where changed circumstances are demonstrated,” either spouse can petition for an increase, decrease, or termination of spousal support). The court may make these changes if (1) there has been a material change in the circumstances for either of the parties, or (2) if an event the court anticipated during the duration of the award did not in fact happen. Id.

The party moving for a modification of spousal support has additional burdens and thresholds to overcome. He or she must prove “both a material change in circumstances and that this change warrants a modification of support. Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605 (Va. Ct. App. 1989). The material change in a spouse’s circumstance must occur after the court’s award decree. Hiner v. Hadeed, 15 Va. App. 575, 577 (Va. Ct. App. 1993). The change in circumstances that allow a court to modify the spousal support must be financial and economic ones. Hollowell v. Hollowell, 6 Va. App. 417, 419 (Va. Ct. App. 1988).

For example, the court in Reece v. Reece granted the husband’s request for a decrease in spousal support because he “proved that his financial circumstances had materially changed . . . after he involuntarily lost his job” as opposed to voluntarily leaving his job. Reece v. Reece, 22 Va. App. 368, 373 (Va. Ct. App. 1996). Additionally, there was no evidence that the husband refused a comparable employment opportunity that would “deliberately minimized his income for the purpose of reducing his ability to support [his] wife.” Id. at 374-75.

But, simply losing your job is not necessarily enough to secure a reduction in spousal support. For example, in Smull, the husband was working full time at a corporation when the corporation lost a contract. Smull v. Smull, 45 Va. Cir. 336, 336 (Va. Cir. Ct. 1998). The husband was involuntarily placed on part time duty with the corporation. Id. He then decided to begin a new career that paid much lower than his corporate job. Id. Subsequently, the court denied his request to decrease his spousal support payments reasoning that his inability to pay was due to his own negligence of not securing a comparable job that had the same earning capacity as his corporation job. Id. at 337.

Circumstances that May Terminate Spousal Support

Spousal support may not last forever. In fact, there are three common instances that usually end spousal support.

1.Habitual Cohabitation

If a spouse whom is receiving spousal support and has been habitually cohabitating with another person in a relationship that is analogous to a marriage for one year or more, the other spouse can petition the spousal support. Va. Code Ann. § 20-109(A). The court must terminate the spousal support in this situation unless the divorced parties had a stipulation or contract that said otherwise or unless the spouse receiving the spousal support proves by a preponderance of the evidence that the termination of the support would be unconscionable. § 20-109(A)(i)-(ii).

2.Remarriage

Va. Code Ann. § 20-110 states that if the spouse receiving the spousal support remarries, then the spousal support must terminate the date of the new marriage. The spouse receiving the support has an affirmative duty to notify the other spouse paying the support to cease payments. Id.

3.Death

Unless the parties had some sort of stipulation or contract that stated otherwise, spousal support must terminate upon the death of either of the parties. Va. Code Ann. § 20-109(D).

Formally known as “alimony,” when one spouse needs more financial support than the other, the spouse in need may petition the court for spousal support after the divorce complaint has been filed. The traditional example is a stay-at-home mom who takes care of the kids while the dad leaves the home for a 9 to 5 office job. Because mom’s job did not produce a financial income that she could rely upon after that marriage ended, courts allow mom (or the spouse in need of financial assistance) to file for spousal support.

When determining the amount of spousal support, the court evaluates all relevant evidence, which leads to a very fact specific inquiry. Va. Code Ann. § 20-107.1(E). In other words, every case will be different and the court will look at thirteen factors, but each factor may not be applicable in every case.

1.The obligation, needs and financial resources of the parties, including income from all pensions, profit sharing, or retirement places. The Virginia State Bar states that the courts place much significance on the payor’s ability to pay the support and do not overweigh the payee’s need for the spousal support.

2.The standard of living established during the marriage, and not the standard of living a spouse lives after the married dissolved. See Furr v. Furr, 13 Va. App. 479 (Va. Ct. App. 1992) (the court increased the spousal support award for the wife, holding that the wife experienced a marked reduction in her standard of living due to a dramatic rise in living expenses after the divorce, but not necessarily due to the divorce itself).

3.How long the marriage lasted. The Virginia State Bar has stated that “[a] financially dependent spouse of a long-term marriage is more likely to receive an award of spousal support than one who has been in a short marriage.” See alsoKeyser v. Keyser, 7 Va. App. 405 (Va. Ct. App. 1988) (finding that four years of marriage is considered a relatively short marriage and that having a relatively short marriage alone does not bar a spouse from rights and interests in the marital assets); Robinson v. Robinson, 45 Va. App. 682 (Va. Ct. App. 2005) (husband only paid spousal support for seventeen months because marriage lasted relatively short duration); Baer v. Baer, No. 2278-94-1, 1996 Va. App. LEXIS 73 (Va. Ct. App. Feb. 6, 1996) (holding that the short duration of a marriage is considered when applied with other spousal support factors, but cannot be the only factor to consider).

4.The age and physical and mental condition of the parties and any special circumstances of the family. See Cooper v. Cooper, 4 Va. Cir. 154 (Va. Cir. Ct. 1984). (the court took into consideration that the wife had multiple sclerosis, was disabled, and received Social Security disability benefits and was unable to participate in gainful employment when ruling in favor of spousal support to the wife).

5.The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home. See Block v. Block, 2005 Va. App. LEXIS 82 (Va. Ct. App. Mar. 1, 2005) (“[t]he court particularly referenced the income and earning capacities of the parties . . . the special needs of the one child; and the decisions regarding employment” for the spousal support award).

6.The contributions, monetary and nonmonetary, of each party to the well-being of the family. See Holmes v. Holmes, 7 Va. App. 472 (Va. Ct. App. 1988) (the court noted that while the husband provided almost all the monetary contributions, the wife provided a significant amount of nonmonetary contributions including the duties of homemaker, mother, and military officer’s wife).

7.The property interests of the parties, both real and personal, tangible and intangible. See Martin v. Martin, 2009 Va. App. LEXIS 80 (Va. Ct. App. Feb. 24, 2009) (holding that the trial court properly considered both real and personal property, tangible and intangible when ruling that it was not going to put the wife in a position of trying to sell the marital home for the purpose of having a lower mortgage payment).

8.The provisions made with regard to the marital property under § 20-107.3

9.The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity. See Srinivasan v. Srinivasan, 10 Va. App. 728 (Va. Ct. App. 1990) (the court took note that the wife was capable of earning a certain amount per year, yet held that she was entitled to a reasonable time to secure employment, and thus was awarded spousal support).

10.The opportunity, ability, and/or the time and costs involved for a spouse to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability. See Holmes v. Holmes, 7 Va. App. 472 (Va. Ct. App. 1988) (the court awarded the wife spousal support by considering the wife’s limited opportunity to seek training and employment at the age of sixty-four).

11.The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time. See Hubbard v. Hubbard, 2008 Va. App. LEXIS 504 (Va. Ct. App. Nov. 18, 2008) (the court took into consideration that both the husband and wife agreed that wife would leave workforce to take care of four children while he worked).

12.The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party. See Hicks v. Hicks, 2012 Va. Cir. LEXIS 80 (Va. Cir. Ct. June 13, 2012) (the court took into consideration that the husband financially supported the wife’s college education during the marriage and thus reduced the amount of spousal support given to her).

13.Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

In setting the spousal support amount, a court “a court must look to current circumstances and what the circumstances will be ‘within the immediate or reasonably foreseeable future,’ not to what may happen in the future.” Srinivasan v. Srinivasan, 10 Va. App. 728, 735 (Va. Ct. App. 1990) (quoting Young v. Young, 3 Va. App. 80, 81-82 (Va. App. Ct. 1986)).

These factors help to determine the nature, amount, and duration of the spousal support. The court can order that the spousal support needs to be paid in periodic payments for a defined duration, in periodic payments for an undefined duration of time, in one lump sum, or a combination of any of these. Va. Code. Ann. § 20-107.1(C).

Stay tuned for my next blog post about how to change or modify the spousal support award due to a material change in circumstances.

We’ve all heard stories about friends or family who have purchased a “lemon” vehicle from a dealership and the vehicle had so many problems that it was in the shop more than on the road. These “lemon” vehicles got their name from the Virginia Motor Vehicle Warranty Enforcement Act of 1948 (also known as the “Lemon Law”). The Lemon Law provides vehicle owners with a remedy against the dealer for this type of defective vehicle.

To begin with, the Lemon Law applies to new and used vehicles or secondary or subsequent purchasers, as long as the second owner is entitled to the benefits of the original warranty of the first purchaser. Subaru of Am. v. Peters, 256 Va. 43, 48 (1998); Pattern v. Chrysler Corp., 41 Va. Cir. 473, 474 (Va. Cir. Ct. 1997). The Lemon Law also applies to leased motor vehicles. Va. Code Ann. § 59.1-207.11. Finally, although the Lemon Law does not include motor homes, it does include the self-propelled motorized chasses of motor homes, which is defined as “the frame, wheels, and engine of a motor vehicle, but not the body.” Parks v. Newmar Corp., 384 F. Supp. 2d 966, 969 (W.D. Va. 2005).

There are four considerations to determine if the lemon law is an available remedy for your defective vehicle:

Who sold you the vehicle?

For what purpose do you use the vehicle?

Did the purchase include a warranty?

How long ago did you purchase the vehicle?

Who Sold You the Vehicle?

The Lemon Law requires manufacturers (Ford, GM, Honda, Toyota, Chrysler, etc.), as well as their agents, and authorized dealers (thing of car dealership), to make any repairs that are necessary to fulfill any warranties issued to the consumer of the vehicles. In other words, the vehicle you purchased from a private party on Craig’s List does not qualify (unless the warranty from an authorized dealer is also transferred to you – see below).

For What Purpose Do You Use the Vehicle?

The Virginia Code requires that the vehicle be used in “substantial part for personal, family, or household” use. § 59.1-207.11. Examples include driving back and forth to work, taking your kids to soccer practice, going out to buy groceries, etc. There can be no recovery under the Lemon Law for commercial purposes (i.e., vehicles used for the purpose of business). Durso v. Chrysler Corp., 41 Va. Cir. 211, 213 (Va. Cir. Ct. 1996). Thus, if a business entity is seeking redress under the Lemon Law, there is no remedy unless the complaint contains “allegations in good faith that [the business entity] is a ‘consumer’ within the definition of the Act.” Id. However, the business entity cannot be a corporation because the definition of “consumer” under the Virginia Lemon Law excludes corporations. Gary Hart Mach. Corp. v. Mercedes-Benz of N. Am., 41 Va. Cir. 249, 250 (Va. Cir. Ct. 1997). Finally, if the first purchaser uses the motor vehicle for commercial purposes and the subsequent purchaser uses it as a consumer good, then the subsequent purchaser can still file a claim within the statutory time period described below. Subaru of Am. v. Peters, 256 Va. 43, 49 (1998).

Did the Purchase Include a Warranty?

The Lemon Law serves as a remedy to the consumer if the manufacturer, its agents, or authorized dealers “[did] not conform to any applicable warranty by repairing or correcting any defect or condition . . . which significantly impairs the use, market value, or safety of the motor vehicle.” Va. Code Ann. § 59.1-207.13(A). If the manufacturer or dealer does not correct a faulty vehicle within the express warranty by correcting a defect after a “reasonable number of attempts,” the manufacturer shall either replace or repurchase the vehicle. Id.

A “reasonable number of attempts” have been undertaken if: (1) the same nonconformity has been repaired three or more times by the manufacturer, its agents, or authorized dealers; (2) the defect is a serious safety issue that is life-threatening and has been repaired one or more times by the manufacturer, its agents, or authorized dealers; or (3) the vehicle is out of service for a cumulative total of thirty calendar days. Id.§ 59.1-207.13(B).

How Long Ago Did You Purchase the Vehicle?

Assuming the warranty still applies, a cause of action must be brought within eighteen months from the date of the original delivery of the motor vehicle to the consumer. Id.§ 59.1-207.11. It does not matter when the vehicle was actually manufactured originally. During this period, the consumer can report any nonconformity to the manufacturer and pursue any rights provided by the Lemon Law. Va. Code Ann. § 59.1-207.11. Furthermore, this eighteen-month period can be extended under two situations.

The first situation is where the consumer and the manufacturer attempt in good faith to settle the dispute pursuant to an informal dispute settlement. Va. Code Ann. § 59.1-207.16. The informal dispute settlement procedure is not defined in the Act and it doesn’t have to be a formal or structured arbitration process. Smith v. GMC, 35 Va. Cir. 112, 118 (Va. Cir. Ct. 1995). It does have to involve a decision made by someone other than the manufacturer or the consumer in the decision-making process. Id. If the dispute settlement resolution is not satisfactory to the consumer, then the consumer has twelve months from the date of the final action taken by the manufacturer in the dispute settlement procedure. Id. To clarify, “a consumer who uses the dispute settlement procedure may file an action either within the eighteen month limitation or within twelve months of the manufacturer’s final action in the settlement procedure, whichever is longer.” Price v. Freedom Ford, Inc., 46 Va. Cir. 129, 131 (Va. Cir. Ct. 1998).

The second situation is where the manufacturer has been notified within the eighteen month period, but the defect still exists or has not been repaired by the manufacturer, its agent, or authorized dealer. Va. Code Ann. § 59.1-207.13(C). Notice can be accomplished upon (1) the mailing of the complaint to the manufacturer; (2) the manufacturer has responded in writing to the complaint; or (3) a factory representative has inspected the vehicle or has met with the consumer or an authorized dealer regarding the nonconformity. Va. Code Ann. § 59.1-207.11. The eighteen month time limitation will be extended until the vehicle has been repaired and conforms to the warranty. Va. Code Ann. § 59.1-207.12.

Here’s a new vehicle example: Suppose you purchased a brand new 2015 Ford Focus on June 1, 2015, and the car is under a three-year warranty. That gives you until June 1, 2018 to bring in the car for repairs (usually free of charge). During this three year period, you start to have trouble with the car, and you realize that the defect is covered by the motor vehicle manufacturer’s express warranty, so you bring the car the dealership who sold it to you for maintenance. Once repaired, you take the car home, but the same problem comes up again and again. From the time you received the car on June 1, 2015, you’ll have eighteen months to file a claim. Filing a claim must be done within that eighteen month period, unless you fit into two of the exceptions described above (dispute settlement agreement and notice).

Here’s a used car example: You bought a used 2005 Chevy Cavalier from the dealership on June 1, 2015. The car also comes with a three-year warranty. The same rules apply. You have eighteen months from the time you received the car on June 1, 2015 to file a cause of action under the Lemon Law. Again, it is irrelevant when the car was actually manufactured. The dates and times that matter are when you first took possession of the car and how long the warranty lasts. It is unlikely that you’ll have a cause of action under the Lemon Law after the warranty expires because at that point, the car has been driven for too long (unless one of the extension circumstances apply).

The Lemon Law was enacted to protect consumers of newly purchased motor vehicles – whether the vehicle itself is new or used. Varisce v. Ford Motor Co., 46 Va. Cir. 270, 271 (Va. Cir. Ct. 1998). If you are having trouble with your newly purchased vehicle and the authorized dealer has not been able to fix it after three or more attempts, or your vehicle is in the shop for more than 30 consecutive days, you may have a cause of action under the Virginia Lemon Law. If your vehicle is a lemon, the Lemon Law requires the manufacturer to provide you with a full refund of the purchase price, or replace the motor vehicle with a comparable motor vehicle acceptable to you, the consumer. Va. Code Ann. § 59.1-207.13(A).

If you think you may have purchased or leased a lemon, please contact Steven Krieger Law for a confidential consultation. The consultation will include a discussion of your specific facts and how you may recover against the dealer.

If there’s only one copy of the defamatory content, destroying it may not be too difficult, but given new technology and the digital world, most content makes it online and then removal becomes exponentially more challenging.

There are three potential avenues to remove defamatory content posted online: the original publisher, the website, and the website hosting service provider. Websites and hosting service providers are generally protected by the Communications Decency Act of 1996. Specifically, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The reason this Act was created was because Congress realized that the internet was being offered as a new forum for free speech, the exchange of ideas, and political debates. Id. § 230(a)(3).

Furthermore, websites that provide a forum for others to potentially post defamatory statements are often staunch defenders of the First Amendment and are not likely to take down the offending content. For instance, if a person asks a website to remove false comments about them, how will the website know what’s true? Which party is lying? Perhaps the most notable of these sites, thedirty.com, explains that “because [they] have no way of knowing which side is telling the truth and which side is lying” they will not take down the content.

However, just because a website owner cannot be liable, does not mean that the party who actually posted the defamatory statements on the website can escape liability. Zeron v. America Online, Inc., 129 F. 3d 327, 330 (4th Cir. 1997). As discussed in my last post, Why is Defamatory or Libelous Content Allowed Online?, liability depends on your ability to meet the defamation standard.

Defamation Standard

For a private figure plaintiff, the standard that applies to most of us, suing for statements made on private matters, then the plaintiff need only prove, by a preponderance of the evidence that the defendant acted negligently in his/her defamatory statement(s) for both punitive and compensatory damages. Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985). “In Virginia, the elements of libel are (1) publication of (2) an actionable statement with (3) the requisite intent.” Jordan v. Kollman, 269 Va. 569, 575 (2005). The plaintiff may recover if he proves that “the publication was false, and that the defendant knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.” Gazette, 229 Va. 1, 15 (1985).

So, How Am I Supposed to Get the Defamatory Content Removed?

There are at least four options to explore when attempting to get the offensive content removed. The first is to take legal action and file suit against the individual who posted the content online. Based on the standard discussed above, a court will either grant or deny your claim. If you are granted relief, you can give your court order as proof to the website provider and they may remove the defamatory content.

A second option is to explore the website’s Terms of Service, all social media sites like Facebook, Instagram, Twitter, Tumblr, etc. and some of the cheater websites like Liars Cheaters R Us, Cheater Report, The Dirty, Online Dating Scams 101, or the negative review sites like Bad Scalpel, and Bad Business R Us, etc. have Terms of Service. It could be helpful to review the Terms of Service for each site and see if the content violates any of the terms. If so, the website likely has a system in place for you to report violations of their terms of service.

A third alternative is to use an “arbitration” service. Some of the sites that serve as a platform for defamatory content have agreements with an independent arbitrator service. When arbitration is used, the arbitrator will investigate the alleged defamatory statements posted by the original publisher. If the publisher provides sufficient proof, then it is likely that the post will not be removed, but if the content is baseless, it may be removed. However, not every site that may contain defamatory content has agreed to work with an arbitration service. For the “cheater websites” like Liars Cheaters R Us, Cheater Report, The Dirty, Online Dating Scams 101, orDating Psychos or the negative review sites like Bad Scalpel, and Bad Business R Us, check and see if they have a specific agreement with InternetReputationControl.com or a similar company. This company, for a fee, will pay for an arbitration service and will additionally represent you during the removal process. Just like the arbitration process, the arbitrator will investigate the claim and come to a determination of whether the statements made are true. InternetReputationControl.com then recommends to the website provider whether the content should be removed from the website. While the websites who have agreements with Reputation Control have said they will follow the recommendations made, Reputation Control states that they cannot always guarantee success. Finally, some websites maintain their own internal removal options like accepting payment in exchange for removal of the offending content. Other sites may remove content if you give them proof that what was posted is false. However, a handful of these websites do not provide any removal options and retain the right to keep or remove the content regardless of proof.

A fourth way to remove content from a website is to explain to the website that the content falls into a protected category or that some exception or exclusion applies under the Communications Decency Act of 1996 and thus they must remove the content. This may be especially useful for removing content from social media sites like Facebook, Twitter, Instagram, and cheater websites. Below are several exceptions from the Act of 1996 that may assist your removal efforts.

(1) No effect on Criminal Laws – As mentioned in my first defamation blog, there are certain areas of speech that are not protected by the First Amendment. Website owners must still abide by federal and state laws. Posts in regards to unprotected obscenity and child pornography will still be illegal. Miller v. California, 413 U.S. 15 (1973) (unprotected obscenity); New York v. Ferber, 458 U.S. 747 (1982) (child pornography).

(2) Intellectual Property Claims – Under the Digital Millennium Copyright Act of 1998, if you have copyright ownership of certain pictures or phrases, you can send a violation notice to a website owner to remove the content.

(3) State law Violations – The Communications Decency Act cannot prevent State laws or common-law doctrine that require website providers to protect the interest of third parties.

(4) Communications Privacy Laws – Depending on the type of communication, one can argue that under the Electronic Communications Privacy Act provides that any person who (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic mechanical, or other device to intercept any oral communication” faces civil liability. 18 U.S.C. § 2511(1).

If none of the above applies, you have two more avenues depending on your circumstances. First, if the website provider edits content that alters its meaning into a defamatory statement, then the website provider may be held liable for defamation. Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257, 1263-64 (N.D. Cal. 2006). Second, some jurisdictions allow the plaintiff to recover based on promissory estoppel. In defamation situations where the website provider promised to take down defamatory content and the plaintiff relied on that promise, but the website provider never took the content down, the plaintiff can then argue promissory estoppel. Barnes v. Yahoo!, Inc., 570 F. 3d 1096, 1107 (9th Cir. 2009).

While this information may seem daunting, given that website owners are generally not liable for what is published, there is still hope that you’ll be able to remove the defamatory statements from the internet – it just may take more time and effort than you expected.

IntroductionPeople make comments every day, but why are some comments allowed and other comments considered defamatory? Doesn’t the First Amendment protect all the comments? The Virginia Supreme court has defined defamation as words or content that create a substantial danger to an individual’s reputation or good standing. Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985). Additionally, words that contain and accusation or “an imputation necessarily harmful to reputation” may also be considered defamation. Id. at 23. This includes both slander (verbal) and libel (written). To determine if the content is defamatory, you have to evaluate what was said and who was the subject matter.

What Was Said and is it Protected by the First Amendment Freedom of Speech?

Generally, speech is protected by the First Amendment. When the Constitution was created, the founding fathers wanted to protect against the British sedition and licensing restrictions of the press, where individuals were not allowed to criticize the government at all. Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 4th ed. New York: Wolters Kluwer Law & Business, 2011. 950-969. The Constitution was drafted to promote four fundamental ideas: self-governance, truth, societal tolerance, and individual autonomy/self-expression. Massey, Calvin R. American Constitutional Law: Powers and Liberties. 4th ed. New York: Wolters Kluwer Law & Business/Aspen, 2013. 849-853. The Supreme Court explained that the idea of free speech is to create a free marketplace for the exchange of ideas. Free speech encourages public debate and ideas in the hope that the truth will eventually rise to the top. New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964).

While the First Amendment protections are critical to our American society, they also make it very difficult to force people to remove libelous content unless if falls into one of the unprotected categories created by the Supreme Court. These unprotected categories include incitement of immediate crimes, true threats, fighting words, obscenity, and child pornography. See Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement of immediate crime); Virginia v. Black, 538 U.S. 343 (2003) (true threats); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words); Miller v. California, 413 U.S. 15 (1973) (unprotected obscenity); New York v. Ferber, 458 U.S. 747 (1982) (child pornography). Additionally, other categories of speech may receive protection under the First Amendment depending on the situation. These include commercial speech and torts based on speech such as defamation and intentional infliction of emotional distress. See Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) (commercial advertising speech); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (defamation of public figures); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (defamation of private figures); Hustler v. Falwell, 485 U.S. 46 (1988) (intentional infliction of emotional distress of public figures); Snyder v. Phelps, 562 U.S. 443 (2011) (intentional infliction of emotional distress of private figures).

Therefore, an angry husband, wife, girlfriend, boyfriend, or anyone else can post mean-spirited content online – especially, if it’s true (more on this below). The reason may not be fair, but the First Amendment allows for the freedom of expression through speech, so generally, even hate speech, offensive speech, and opinions will be protected under the First Amendment. See Virginia v. Black, 538 U.S. 343 (2003) (hate Speech); Cohen v. California, 403 U.S. 15 (1971) (offensive speech).Who was the Communication About -- Public Individual vs. Private Individual?

A public figure is a person who plays an influential role in society and has ready access to the mass media. They are usually people who voluntarily thrust themselves into the light of public questioning, and by reason of their fame, shape events in areas of concern to society at large. See Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967). Examples include politicians, celebrities, and public officials. If a person does not fit into the category of a public figure, then they are considered a private figure. In other words, most of us fall into the private figure category. How Do I Know if the Posting is Defamatory or Libelous?

A statement is defamatory if it tends to harm the reputation of another in a way that lowers his/her good standing within the community, and thus deterring others from associating with that person. Bell v. Nat’l Republican Cong. Comm., 187 F. Supp. 2d 605, 615 (S.D. W. Va. 2002). Statements that are merely offensive unpleasant are not defamatory. Chaves v. Johnson, 230 Va. 112, 119 (1985). It will be up to the Court, not the jury, to determine whether an alleged defamatory statement is a mere opinion or one of fact. Id.Under Virginia common law, a private figure filing a claim of action for defamation must first show the defendant published a false factual statement of or concerning plaintiff or the plaintiff’s reputation. Gazette, Inc. v. Harris, 229 Va. 1, 37 (1985). Furthermore, claims of action for private individuals to recover only compensatory damages must prove, by a preponderance of the evidence “that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.” Id. at 15.

In other words, for a private figure plaintiff (the standard that likely applies to the majority of us), suing for statements made on private matters, then the plaintiff need only prove, by a preponderance of the evidence that the defendant acted negligently in his/her defamatory statement(s) for both punitive and compensatory damages. Gazette, Inc. v. Harris, 229 Va. 1, 15 (1985). “In Virginia, the elements of libel are (1) publication of (2) an actionable statement with (3) the requisite intent.” Jordan v. Kollman, 269 Va. 569, 575 (2005). The plaintiff may recover if he proves that “the publication was false, and that the defendant knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based.” Gazette, 229 Va. 1, 15 (1985).For a public figure (celebrity, politician, etc.), the statements in question must meet the “actual malice” standard described in Times v. Sullivan. To be awarded compensatory and/or punitive damages based on a defamation claim, the public figure plaintiff must prove by clear and convincing evidence that the defendant made knowingly false statements or had a reckless disregard for the truth. If proven, the defendant will be liable for defamatory speech. It does not matter if the defamatory statements is a matter of public concern or private concern.

For a private figure plaintiff who is suing for statements made on public matters, the previously discussed standard of “actual malice,” but only for punitive damages. The plaintiff must prove, by clear and convincing evidence, that the defendant made knowingly false statements or had a reckless disregard for the truth. But, if the private figure plaintiff is only seeking compensatory damages, there is a lower burden for the plaintiff to prove. The plaintiff must prove, by a preponderance of the evidence, that the defendant was merely negligent in failing to discover the misstatements.

If you determine that the content is defamatory, stay tuned for my next post with tips to help you remove the defamatory content from the web.

By: Melanie Eisenhart Suppose you come across a picture of yourself, without your permission, posted on a website advertising a local business? You’d probably sense that this seems wrong and that your rights were imposed upon in some way. A courteous phone call to the business will likely resolve the issue, but what if the business will not cooperate? Or what if you find your image on a social media site like Facebook, Instagram, Twitter, or Tumblr, or one of many “cheater” websites like LiarsCheatersR’Us, Cheater Report, The Dirty, Online Dating Scams 101, or Cheater Reports, and the poster refuses to remove the image? If the poster will not voluntarily remove your image, one possible avenue of recourse is to determine if the poster has infringed upon a copyright.[1] Copyright law applies to amateurs and professionals alike. Section 104 of the Copyright Act takes an individual’s rights to their intellectual property further and safeguards even unpublished artistic works. A copyright in an original work exists at the moment of creation; however, to bring a lawsuit for infringement, the author must comply with the statutory requirements of the Copyright Act.[2] The first step is to determine who owns the copyright by determining who took the picture or image you are seeking to remove. Perhaps contrary to your suspicion, the photographer of an image owns the copyright to that image and has certain intellectual property rights associated with the image, including how the image is used—as the person in the photograph, you have no intellectual property rights to the image. If the poster took the picture, the poster owns the copyright and posting the picture will not violate any copyright infringement claims[3] If the person who posted the image did not take the image, the next question is to determine if the poster is allowed to post the image. One way to avoid a copyright infringement claim is to get permission from the person who owns the copyright. Another way to avoid a copyright infringement claim is if the image may fall under the fair use doctrine. Fair use is an affirmative defense to an accusation of copyright infringement. In other words, it is an excuse, or an exception, to infringing upon the rights of another.Section 107 of the Copyright Act lays out the statutory doctrine of fair use, and details four factors that courts consider in determining whether fair use is applicable to an allegation of copyright infringement. The section states: "[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." Courts have further expanded on how these four factors are evaluated. Factor One: The Purpose and Character of the Use If the user stands to profit from the use of the copyrighted material without compensating the creator, this tends to weigh against fair use. In Harper & Row Publishers, Inc. v. Nation Enterprises,[4] the court found that fair use did not apply and the plaintiff publisher’s copyright was violated when the defendant magazine used quotes from former president Gerald Ford’s soon-to-be-published memoir because the magazine sought to profit from the plaintiff publisher’s material prior to the publication date. Factor Two: Nature of the Copyrighted Work When a work is more creative than factual in nature, fair use is less likely to be found. See generally Stewart v. Abend, 495 U.S. 207, 237 (1990) (noting that a movie derived from a fictional short story falls short of fair use and violates the owner’s copyright due to the similarities between the movie and story and the creative nature of the story). Factor Three: Amount and Substantiality of the Portion Used While the amount of the work used is important, whether the portion was of high significance, or the “heart of the copyrighted work,” generally plays a greater role in determining fair use. See generally Sundeman v. The Seajay Soc’y, Inc., 142 F.3d 194, 205 (4th Cir. 1998) (finding that fair use applied and the copyright was not violated because the portions of text quoted by the defendant in an oral presentation, while significant, were not significant enough to be considered the heart of the material). Factor Four: The Effect of the Use Upon the Potential Market for or Value of the Work Since one of the benefits of the Copyright Act is to encourage creativity, it is natural that the owner of a work would expect to be compensated for his or her creation. When considering the effects on the potential market, courts look at whether the use"would materially impair the marketability of the work and whether it would act as a market substitute." Bond v. Blum, 317 F.3d 385, 396 (4th Cir. 2003). See generally Harper & Row, 471 U.S. at 566 (finding that the use was not fair and violated the owner’s copyright because the quotes borrowed from President Ford’s unpublished manuscript showed clear-cut evidence of damage to the book’s marketability upon publication). Most courts rely on the Supreme Court decision in Campbell v. Acuff-Rose Music, Inc. and find that these four factors cannot be considered in a vacuum, but must be “weighed together, in light of the purposes of copyright.” 510 U.S. 569, 578 (1994). Essentially, each of the fair use factors is important and creates a balance between the rights of the owner and the interests of the public. A recent Virginia case raised the issue of copyright infringement when the plaintiffs, four high school students, challenged iParadigms (also known as Turnitin) for archiving their papers into the system’s database in order to evaluate future student submissions for plagiarism. A.V. ex. rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 635-36 (4th Cir. 2009). The court found that the defendant infringed upon the plaintiffs’ rights, but that, after considering each of the four factors and weighing their relevance together, the defense of fair use applied and the defendant did not violate the students’ copyrights. Id. at 645.Copyright infringement is a serious issue, so a good rule of thumb is to always ask the owner’s permission before using an image that doesn’t belong to you. This could avoid the potential for copyright infringement and future litigation.

Footnotes:[1] This differs from the protection offered by a trademark. To be clear, a trademark and a copyright are completely different. While a copyright protects artistic expression, a trademark protects a brand. Specifically, a trademark is “a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.” United States Patent and Trademark Office, Protecting Your Trademark: Enhancing Your Rights Through Federal Registration, 1 (2015), http://www.uspto.gov/sites/default/files/BasicFacts.pdf. A trademark offers the same protection as a copyright when it is registered and published through the United States Patent and Trademark Office.[2]Edgerton v. UPI Holdings, Inc., 2010 WL 2651304, at *5 (D.Md. July 1, 2010). [3] Copyrights are federally protected through the Copyright Act, found in Title 17 of the United States Code. According to Section 102 of the Act, “copyright protection subsists [. . .] in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.”[4] 471 U.S. 539, 562 (1997).

By Assya ThodeIt is easy and far too common to find yourself in a situation where an immediate family member, relative, or friend needs a place to stay and asks you for help. You have probably known this person for a long time and are willing to help. There is absolutely nothing wrong with helping, but what happens if this person over stays their welcome and then refuses to leave upon your request?* The duration of their stay and any rent to be paid probably was not discussed in detail and you probably did not have the person sign a lease or written agreement, so how are you supposed to get this person out of your home? Chances are you have already politely asked them to leave but after repeated failed attempts you are considering legal action because you are left with no other choice. The first step is determining how the law characterizes your friend, relative, boyfriend, girlfriend, etc. in such circumstance. Just because you do not have a written lease, does not mean you are powerless.In Virginia, if no written agreement or lease is in place, then the courts consider the agreement to be verbal lease, which is treated like a month-to-month tenancy. See Virginia Code § 55-248.7 for leases governed by the Virginia Residential Landlord and Tenant Act.The second step is to begin the eviction process. To evict a month to month tenant, you must terminate the occupancy by sending a 30 day Notice of Termination. See Virginia Code§55-222. If the 30 day period expires and your houseguest has failed to vacate your property, you then simply follow the steps of the eviction process. For more details and a step by step explanation of the eviction process, please see our blog The Eviction Process in Virginia: A Guide for Landlords and Tenants.Don't give up. Eventually, you will be able to get your unwanted guest out.

*If your guest is threatening you or you fear for your safety, please call your local law enforcement agency or 9-1-1 if it is truly an emergency. If you fear for your safety, you may consider filing a protective order to prevent the guest from harming you. See Virginia Code § 19.2-152.10.This blog post provides general information only and is not intended to provide the reader with legal advice. Laws often change before websites can be updated, so please contact Steven Krieger Law for a consultation to evaluate your specific case.

Whether a recorded conversation may be introduced as evidence in court has become a frequent question because everyone has access to recording devices on smart phones. Recorded conversation are governed by federal and state laws, so before recording a telephone call or an in-person conversation, you must consider the applicable laws to ensure that your recording is admissible.

Assuming the recording is for a permissible purpose,* the primary consideration is knowing whether your state or jurisdiction requires one party consent or two party consent. As the name suggests, one party consent only requires permission to record the conversation from one of the parties participating in the conversation. Therefore, if you are a party to the conversation, you may record it without obtaining permission from the other party or parties. A two party consent rules requires consent by two or all parties in the conversation. In other words, if you are part of the conversation, you must also get permission to record from the other party or parties.

Virginia is a one party consent jurisdiction and Virginia Code § 19.2-62 makes it a crime to intercept wire, electronic or oral communications, except if one party of the conversation consents to it. Again, this means that if you are participating in the conversation then you may record the conversation without the consent of the other parties, but if you are not participating in the conversation (the other parties do not know you are listening), then you need at least one party to the conservation to consent to the recording.

However, Virginia distinguishes between in-person conversations and telephone conversations. Virginia Code § 19.2-61 defines “oral communications” to mean “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectations but does not include any electronic communication.” Therefore, you may record in-person conversations in a setting where the speaker does not have a reasonable expectation of privacy and where one party consents to the recording.

If the person has a reasonable expectation of privacy, like if you are trying to record a conversation inside the speaker’s home, following the stricter guidelines that apply to telephone conversations would be prudent.

Telephone conversations shall be admitted in a civil trial if (1) all parties were aware that the conversation was being recording because such notice was given at the beginning of the conversation to be admitted; or (2) the admissions, if true, are criminal conduct, and the basis of the civil action, then only one party consent is required, but this does not apply to proceedings in divorce, separate maintenance, or annulments. Virginia Code § 8.01-420.2.

You may be able to avoid some of the pitfalls involved with recording conversations if you video record a conversation where the camera is in plain view because consent may be presumed by the participants (if they did not consent they would not continue to speak while being video recorded).

If you are recording a conversation between parties in different states or jurisdictions, it is best to adhere to the strictest statute because although you may only need one party consent in your state, you may be committing a crime if the other state requires two party consent. For a list of consent requirements by state click here.

It is always illegal to record a conversation to which you are not a party and for which you do not have the consent of any party involved.

*Federal law 18 U.S.C. §2511(d) prohibits secretly recording a conversation if the recording is to be used for a criminal prosecution unless one of the parties consents.

This blog post provides general information only and is not intended to provide the reader with legal advice. Laws often change before websites can be updated, so please contact Steven Krieger Law for a consultation to evaluate your specific case.

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The blog postings and information on this site are provided for informational purposes only and is only meant to provide a general overview or description of the law and may not reflect current legal developments, verdicts or settlements. It is not, nor is it intended to be, specific legal advice, which requires an analysis based on the specific factors unique to each case. Therefore, do not act or refrain from acting on the basis of any content included on this site without seeking a confidential consultation from a knowledgeable attorney.

By accessing this site you acknowledge that this information is not provided in the course of an attorney-client relationship, is not intended to constitute legal advice, and Steven Krieger Law, PLLC expressly disclaims all liability in respect to actions taken or not taken based on any of the contents of this website.